>Date: Sat, 11 Nov 2000 10:27:01 -0500 >Reply-To: nathan.newman@yale.edu >Sender: owner-triumph-of-content-l@usc.edu >From: "Nathan Newman" <nathan.newman@yale.edu> >To: <Undisclosed-Recipient:@mr1.its.yale.edu;> >Subject: Florida Common Law and Election "Irregularities" >X-Priority: 3 >X-Rcpt-To: kali@kalital.com > >===================================================== > Yale Law Students CAMPAIGN FOR A LEGAL ELECTION > Yale Law School 127 Wall Street New Haven, CT 06511 > (203) 432-4888 spin@pantheon.yale.edu >===================================================== > >FLORIDA COMMON LAW AND ELECTION "IRREGULARITIES" >The Yale Law School Campaign for a Legal Election > >According to a CNN on-line report, Florida "Judges have the >discretion to invalidate elections and impose lesser remedies if >they agree with plaintiffs that there were improprieties on >Election Day."(1) That statement is precisely wrong. Such judges >have zero discretion - they are required to declare the election >void. > >That bright-line rule comes from the Florida State Supreme >Court's decision in Beckstrom v. Volusia County Canvassing >Board, 707 So.2d 720 (Fla. 1998). Although the court in that >case validated the election in question (which hinged on the >legitimacy of the absentee voting process, a substantial >difference from the Presidential contest), it made clear that >the law in Florida requires judges to void elections in which >there is doubt about the true will of the voters. There are >several principles in that decision worth highlighting: > >1) ELECTION IRREGULARITIES ARE APPROPRIATELY RESOLVED IN COURT. > >"It appears that the validity of an election . . . is >an issue of great public importance whose resolution >is required by the high court . . . ."(2) > > Note the use of the word "required"; we are not talking >about whether it would be in the best judgment of all concerned, >or whether it is politically responsible or wise for either >candidate to support a legal challenge. The law in Florida >demands that a court resolve the issue when there is a >legitimate concern as to which candidate the voters have chosen. >When people like Karen Hughes, Bush's Communications Director, >utter remarks like "We certainly hope the Democrats would stop >this talk of endless legal battles," and "I hope the vice >president and his campaign officials would think through their >responsibility to this country and to the process," she is >arguing against the rule of law.(3) > >2) THIS IS ABOUT THE RIGHTS OF CITIZENS, NOT CANDIDATES. > > "The real parties in interest here . . . are the >voters. They are possessed of the ultimate interest >and it is they whom we must give primary >consideration."(4) > > Al Gore and George W. Bush are not the people whose rights >may have been violated (although one of them will be very sore >when this is all over). The thousands of voters who were >confused by the ballot and either voted for the wrong candidate >or had their ballots thrown out are the ones who have been >deprived of that most basic right in a democracy, the right to >vote. They are the people we should be concerned about, whether >they meant to vote for Al Gore or George Bush or someone else. > >3) THE JUDGE WHO HEARS THIS CASE WILL HAVE NO CHOICE BUT TO VOID >THE ELECTION. > >"[I]f a court finds substantial noncompliance with >statutory election procedures and also makes a factual >determination that reasonable doubt exists as to >whether a certified election expressed the will of the >voters, then the court . . . is to void the contested >election, even in the absence of fraud or intentional >wrongdoing."(5) > >As with the first point, there is no discretion here - note >the language - a judge "is to void", not "may void." According >to a political scientist quoted by CNN, "It would take a >tremendously courageous judge to take responsibility for >[voiding an election]. That judge or that panel of judges would >be taking responsibility for deciding who is the next president >of the United States."(6) Although whichever judge (or panel of >judges) hears this case will face a great deal of political >pressure, and indeed must be courageous enough to withstand it, >he or she (or they) has little choice in the matter. The >application of the law requires that this election be voided, >for two reasons: > >A) THERE HAS BEEN CLEAR, SUBSTANTIAL NON-COMPLIANCE >WITH FLORIDA ELECTION LAW AS REGARDS THE LAYOUT OF THE >BALLOT. > >Florida law clearly states that the ballot punch holes must >be to the right of the candidates' names, and that the Democrat >be listed as the second candidate on the ballot.(7) The law exists >precisely to prevent voter confusion. In Palm Beach, however, >the holes were to the left of some names, and the one to punch >for Gore was the third one down. That elected Democrats may >have okayed this ballot is totally irrelevant; again, we are not >concerned with the rights of political parties or candidates, >but rather with the rights of voters. > >B) THERE "EXISTS REASONABLE DOUBT" AS TO THE EXPRESSED WILL >OF THE VOTERS. > >This is a no-brainer. The election hinges on 327 votes. >According to CNN, Patrick Buchanan received 3,407 votes in Palm >Beach County, a number even he admits is too large. "I don't >doubt a number of those ballots, of those votes that were cast >for me, probably were intended for Vice President Gore," he >confessed to Larry King. Considering that Gore received 62 >percent of the Palm Beach Vote overall, there is little doubt >that the confused votes for Buchanan could have swung the >election to Gore.(8) Add to that the discounted 19,000+ ballots, >and there is simply no question about whether reasonable doubt >exists. Huge doubt exists. > > Given the two clear facts - that there was substantial non- >compliance that resulted in doubt as to the expressed will of >voters, the Florida judges who hear this case have no choice but >to void the election. In so-doing, they will not be deciding >"who is the next president of the United States," because until >the re-vote is counted, we cannot know who that will be (and, >given the network election-night fiascos, we should all be wary >of any predicted outcomes). Rather, they will be affirming the >voting rights of the citizens of the Great State of Florida. > > >Notes > >1. Reported at: >http://www.cnn.com/2000/LAW/11/09/election.remedies.florida.pol/index.html >2. Beckstrom, 707 So.2d at 724. This statement is made in the context of a >finding of gross negligence, but no fraud, >with regard to absentee ballots. Gross negligence is later defined by the >court to mean "negligence that is so >pervasive that it thwarts the will of the people." Id. at 725. Surely, the >validity of an election called into question by >gross negligence at the actual voting booths is equally an issue of great >public importance whose resolution is >required by the high court. . . ." Id. at 724. >3. Reported at: >http://www.cnn.com/2000/ALLPOLITICS/stories/11/10/election.president.03/inde >x.html >4. Id. at 724 (internal quotes and citation omitted). >5. Beckstrom, 707 So.2d at 725. >6. Reported at >http://www.cnn.com/2000/LAW/11/09/election.remedies.florida.pol/index.html#1 >7. Fla. Stat. 101.191 >8. The facts and quotes in this section can all be found at: >http://www.cnn.com/2000/LAW/11/10/palm.beach.controver/index.html
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